P v. Vasquez & Bryant (3rd Dist.) Chiu Has No Application to the Principle of Transferred Intent in a Case of Premeditated 1Deg. Murder

Mr. Bryant and Mr. Vasquez were visiting a friend at an apartment complex, waiting to exact revenge on a rival gang member.  Mr. Duncan, the target of Bryant's ire, and his girlfriend, Ms. Horton, lived at the complex and were returning home from a meal at Subway.  Bryant drove through the complex parking lot with Vasquez his passenger.  Bryant parked and Vasquez walked over to Duncan, took out a gun, and started firing.  Duncan took out his own gun and fired back.  Bryant, was hit, and called Bryant to drive over and get him out of there, which Bryant did. Duncan was hit, but survived.  Horton was hit and killed.  

Pertinent to the published portion of the opinion, Bryant was convicted of the first degree premeditated murder of Horton.  He appealed.

The Third District affirms.  

Bryant's argument on appeal (as to this count) is that the California Supreme Court's recent decision in Chiu, does not allow him to be found guilty of premeditated first-degree murder on a theory of transferred intent.  "Not so," says the panel.

The discussion involves three legal concepts: aiding and abetting liability, the theory of "natural and probable consequences" (actually a subsection of aiding and abetting liability), and transferred intent.  

Aiding and abetting liability is a form of vicarious liability in which a person harbors the specific intent that a target crime be committed by another person (we'll call him "the heavy") and then helps or encourages the heavy to carry out the crime.  Should the heavy carry out the target crime, the aider and abettor is guilty of that target crime.  Sometimes the heavy not only commits the target crime, but goes on to commit additional crimes while committing the target crime.  Under the "natural and probable consequences" theory, when a heavy commits additional crimes, the aider and abettor is guilty of those crimes too (even if he never intended the heavy to commit the extra crimes) if the extra crimes are a "natural and probable consequence" of the target crime.

Here is a common example.  Unhappy with my lifestyle, I talk to my wife about robbing our credit union.  My wife says, "great idea honey, I'll be your getaway driver".  She then drives me to the credit union and waits for me while I go inside, pull out a pistol, and demand an employee open the safe.  The employee tells me he cannot open the safe because he doesn't have the necessary code.  So I shoot him (he survives, it's just a flesh wound).  I return to the car and tell my wife what happened, whereupon she scolds me for my idiocy and tells me, "I never intended for anyone to get hurt".

Under these facts I am guilty of, at least, robbery and assault with a firearm.  My wife is also guilty of robbery and assault with a firearm.  The robbery was the target crime and the firearm assault was a "natural and probable consequence" of the robbery.

There is one recent limitation on the "natural and probable consequence" doctrine.  In Chiu, the California Supreme Court held that "natural and probable consequence" cannot be used to impose liability for premeditated first-degree murder (other forms of murder are okay).  

Now we turn to "transferred intent".  Premeditated first degree murder, under facts such as these, require an intent to kill the victim.  But what if you shoot at the person you want to kill, miss him, and hit a person standing close by, killing that person?  You didn't intend to kill the bystander, so does that not mean you are not guilty of premeditated first degree murder?  No.  The law uses the principle of "transferred intent" to impute to you the intent to kill the bystander.  

Here, Bryant intended for Vasquez to kill Duncan and then help Vasquez escape from the scene.  We'll assume Bryant had no intent to kill Duncan's girlfriend, Horton.  Vasquez ends up killing Horton who is caught in the crossfire.  Can Bryant be convicted of the premeditated first degree murder of Horton?  Yes, says the opinion.  And as the law stands now, it is correct.  The target crime was murder, the crime Bryant intended and helped Vasquez to commit.  The natural and probable doctrine has no application here.  Bryant tries, admirably, to argue that the murder of Duncan was the target crime and the extra "natural and probable" crime was the murder of Horton.  But as it is the target crime's intent which is transferred, the murder of Horton becomes the target crime.